Magistrate refuses to suspend extradition proceedings pending ECJ reference

A magistrate has turned down a request to suspend extradition proceedings to allow the defence to seek a ruling from the European Court of Justice, clarifying a point of law.

Magistrate Aaron Bugeja heard lawyer and MP Jason Azzopardi, part of the legal team representing 44-year-old Angelo Spiteri, argue that the Maltese legislator had made a mistake when transposing the EU's legal framework on European Arrest Warrants (EAWs) into national law.

Spiteri is the director of a Lithuanian-registered travel company Atostogu Sandelis, who is wanted to face fraud charges in Lithuania. He is the subject of a European Arrest Warrant in Lithuania, where along with two others, is accused of setting up “Atostogu sandèlis” (which loosely translates to Holiday Warehouse) in Vilnius – a false company which would convince its victims to sign accommodation agreements with certain hotels and after signing and receiving payment for this, would deliberately not provide the service which he had received payment for.

Thursday's sitting had ended on something of a cliffhanger, after Azzopardi put the cat amongst the pigeons by suggesting that the Maltese authorities allow Spiteri's extradition for trial on condition that he be returned to serve his sentence in Malta, as opposed to the ghoulish Lithuanian prison system.

This was a contemplated in article 5(3) of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, but this point had not been transposed into Maltese law, the defence had pointed out.

Azzopardi repeated the request when the hearing resumed yesterday.“In view of the fact that Legal Notice 276.05 (Extradition Designation Foreign Countries Order) purportedly transposes faithfully and fully the Council Framework Decision of the 13th June 2002 on the European Arrest Warrant and due to the objectively incontrovertible fact that Article 5(3) of the said Framework decision is not transposed or found in either in the said legal notice or in any other law in Maltese legal architecture and having regard to article 267 of the TFEU, the defence, on behalf of the requested person in these proceedings, formally asks this court to refer the matter to the European Court of Justice for a preliminary ruling concerning the interpretation of article 5(3) of this European instrument and whether it is faithfully reflected in LN 276.05 and also on the validity of that Legal Notice insofar as it fails to provide for the faithful and full implementation of article 5(3).” 

“The defence also asks this court to suspend the continuation of the proceedings until the decision by the ECJ is delivered.”

The court asked Azzopardi to clarify what he was basing his request to suspend the proceedings on. "A mistake by the legislator," he replied. “Whenever there is a request for a preliminary ruling by the ECJ, the court suspends proceedings, out of prudence. My client cannot be allowed to suffer because the legislator did not provide for him.”

But the magistrate did not agree, pointing out that his court could not pass judgment using an article of EU legislation that had not been transposed into local law.

Azzopardi angrily lambasted Malta's pride, which he said had prevented it from seeking advice on difficult legal questions. Malta had the worst record for referring questions to the ECJ, the lawyer alleged, having only referred two issues of European law to the ECJ for clarification. “Through no fault of the court, the legislator left out something very important to the accused's case,” the lawyer said.

But the prosecution argued that whilst Article 5(3) of the framework decision mentioned specific conditions to which the member states could subject surrender orders, it left in the hands of the member states the discretion as to whether or not to include these conditions into their national legislation.

Magistrate Bugeja felt that the omission was intentional and reminded Azzopardi that where the legislator had wanted to implement EU law provisions in the Maltese tradition, the legislator had done so. “Look at the order,” said the magistrate.

“I looked at something even more important than the order, I looked at the treaty,” shot back the defence. “This happens in every European Country, but not Malta because we're too clever.”

“How can I not be angry?” replied Azzopardi. “Lithuania says that they accept the use of the procedure, but this court can't because Maltese law does not give it this faculty.”

Unruffled, the magistrate made it clear that while he did not like Azzopardi’s tone, he also appreciated the effort which that the lawyer had put into preparing his submissions. “What I am saying is that the situation could be very different. The legislator for better or worse, in that article...chose not to include it. My legislator, yours,” the court said.

The court ruled that it could find no legal basis warranting the suspension of proceedings, “particularly in the light of the draconian nature of the European arrest warrant procedure established by the order.”

Consequently, the court ordered proceedings to continue.